Your View: Surveillance makes us fear for the Internet

The recent disclosures about warrants obtained by the Federal Bureau of Investigation and the National Security Agency from a special secret court that demand the cooperation of some of the nation's largest Internet players are troubling.

The recent disclosures about warrants obtained by the Federal Bureau of Investigation and the National Security Agency from a special secret court that demand the cooperation of some of the nation's largest Internet players are troubling.

These extraordinary powers come from the Foreign Intelligence Security Act of 1978, the USA Patriot Act of 2001, the Patriot Act Amendments of 2008 and from some creative judicial interpretations by the FISA Court. FISA authorized the government to monitor private electronic communications between the United States and a foreign country. The act further mandated that the government minimize the acquisition and dissemination of any private information acquired about Americans. It required that the government get a warrant from a newly established secret FISA court.

The Patriot Act of 2001 authorized the FBI to make an application to the FISA court for an order requiring the production of any tangible things (including books, records, papers, documents) for an investigation to protect against international terrorism or clandestine intelligence activities. The order could not disclose its purposes or that the FBI sought it. The target of the warrant was freed from liability from third parties arising from such production.

The 2008 Amendment made three significant changes: first, it freed the government from the need to describe each specific target of the warrants; second, it eliminated the requirement that a target be a foreign power or an agent of a foreign power; and third, it eliminated the court's authority to supervise the privacy-intrusion minimization procedures.

Concerning the FISA Court and its secret orders, we know little except from reports of investigative journalists. In applications for warrant approvals, only the government's side is represented and courts generally do not write opinions justifying their decisions. According to the dissenting opinion written by Justice Breyer in the recent Clapper case, in 2011the FISA court approved 1,674 of the 1,676 applications for warrants; two were withdrawn by the government. Recent secret rulings from the FISA Court have apparently expanded the search agenda to now include not just terrorism, but also nuclear proliferation, espionage and cyberattacks. In the recently reported Verizon case, we learn that a FISA warrant obligated Verizon to allow government access to all calls from mid-April to mid-July. It appears that under a program code-named PRISM, nine Internet companies have received warrants: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube and Apple. The NSA and FBI are tapping directly into the central servers of the nine , extracting audio and video chats, photographs, emails, documents and connection logs that enable analysts to track foreign targets.

The nine companies hold data of billions of individuals. With publication of the disclosures of the last month we now realize that NSA and the FBI have access to servers maintained by those companies, which subjects all of our Internet activity to the potential of government surveillance. As such, these warrants undermine the values of both the First and the Fourth amendments to the Constitution. The First Amendment guarantees the free flow of information through our society without fear of censorship. The Fourth Amendment prohibits the government snooping into our private affairs. It requires that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The three-month Verizon warrant is the kind of general warrant the Fourth Amendment was designed to prevent. In the Clapper case, the Supreme Court heard a case this past term presenting the question of whether FISA warrants violate the Fourth Amendment in a case brought by Amnesty International and others claiming that the whole FISA program subjected their communications with foreign organizations to government surveillance. Because the FISA warrants are secret, Amnesty International could not prove its claim. Thus by a 5-4 vote the Court dismissed the case for lack of standing, which left the constitutional issue undecided.

Clearly, Congress has given the NSA unprecedented and extraordinary powers. One response could be that we should be grateful for a government that is being vigilant in protecting our safety. The Internet's two most spectacular achievements have been the placement of virtually all of our knowledge and experience at the fingertips of anyone with access to a computer; and, the exponential explosion in human interaction and communication. As such, it places the tools for creativity and innovation in the hands of every individual on the planet. Placing the Internet under surveillance will harm it. It erodes trust; it instills fear; it chills inquiry; it changes the power relationships between people and the government. If it also undermines our trust in the Internet we may wonder whether our enhanced safety was worth it.